Author Claims That 'Fair Use Is Theft By Any Other Name'

from the while-paraphrasing-shakespeare dept

We'd noted that there's a big copyright review going on down in Australia, with the current suggestion being to recognize fair use in Australia. This would be a huge step forward because, as has been widely recognized in the US, fair use is a key driver of creativity. Yet, for reasons that make little sense, the big copyright holders hate fair use, and argue that fair use needs to be restricted... even as they rely on fair use themselves.

The problem, often, is that those who lash out against fair use rarely recognize just how important it is to their own creativity, as well as the ability to create important services that they use. So it's especially ridiculous to see the bogus arguments laid out against fair use. Case in point, down in Australia, author Linda Jaivin has written a factually-challenged article entitled: Long story short: Fair use is theft by any other name. What's incredible is how Jaivin's own argument is completely undermined by her own words. Let's start out with the very title her article is under:

Long story short: Fair use is theft by any other name

This is a hacky paraphrase of William Shakespeare's "A rose by any other name would smell as sweet." There is no reason to use "by any other name" other than as a reference back to the Shakespearean dialogue from Romeo & Juliet. In other words, Jaivin is relying on our cultural familiarity with the phrase "by any other name" to draw attention to her article. This is how culture works. Certain concepts or phrases become common knowledge through sharing, and the ability to adapt and change them, to paraphrase them and use them in things like column headlines to try to make your point. Yet Jaivin doesn't even seem to realize that if the reuse of someone else's "intellectual property" is "theft" then she has committed theft herself.

And it gets worse. The first few paragraphs of her column are all about how she relies on others' works to write her own books.

There is often much research involved as well - my latest novel, A Most Immoral Woman, required extensive reading in the Russo-Japanese War period and visits to archives in cities in Japan and China before I could even start writing....

She's using this to argue that writing is expensive, and thus she needs to get paid to continue such things. Indeed, that's how things work. If you build a business, in order to keep in business, you need to make money. But that's got nothing to do with fair use. In fact, I do wonder, when her books sell, does she contribute part of the revenue back to the authors of all of the works on the Russo-Japanese War? Or to the caretakers of those archives? After all, she has admitted to building on their important work to produce her own work and, obviously, it took time to create and manage those works as well. They need to earn a living also. So, based on her own argument, shouldn't she have to pay a cut of her earnings to those whose work she relied on for her own? Or does it only work in one direction? Linda Jaivin is able to build her own works off the works of others, but woe be unto those who go in the other direction?

This is the reality: our ability to make any kind of living depends on a social contract, supported by law, that says this is our intellectual property. Legal systems and conventions around copyright have evolved out of respect for what it is to create content, its contribution to the social good and out of a sense of fairness that the fact that technology makes it easy to reproduce content does not mean that content is therefore free for the taking.

No, your ability to make a living depends on your ability to produce something -- product or service -- that enough people are willing to pay enough for that you can earn a living. That's it. That's how it's always worked. Copyright is one tool -- and not necessarily a great one -- in making some of that possible. But, as authors and other content creators all over the world have realized, copyright is often a very blunt tool, and not a particularly effective one for earning a living. Many authors have realized that building up a real connection with their fans, such that those fans want to support them, is a hell of a lot more effective as a means of earning a living. And, as such, they realize that when people share their works, it is not harmful to their living, but rather helpful, because they can gain more fans.

To allow others to steal and/or profit from intellectual property that we have created is no different than saying it would be OK to smash your way into a designer's atelier and grab whatever outfits you fancy. Copyright law protects against theft no less than any other property law.

And yet, she has no problem "smashing" her way into the other works she reads or archives she visits to grab whatever she "fancies." Copyright law has never been about "protecting against theft." It has always been about an incentive for creation such that the public can benefit. And, along those lines, in the US we've long recognized that fair use plays a key role in that, allowing people to increase the amount of creation by being able to build on, transform, comment on, criticize, etc. the works of others. No one is arguing for the wholesale copying of works, or the eradication of copyright here. They're just saying that the ability to freely quote a small passage for a reasonable purpose shouldn't require a license -- and that makes tremendous sense. In fact, it makes it that much more likely that people will become aware of her works.

not direction, timeline

Or does it only work in one direction? Linda Jaivin is able to build her own works off the works of others, but woe be unto those who go in the other direction?

Building on others is always in one direction: From the present to the past. It is merely the point of view of someone when they look from the past into the future from where these new uses build off existing works.

Re: not direction, timeline

I'm going to write a book chronicling that time Linda Jaivin wrote a book chronicling the Russo-Japanese War period and then just give all the profits to Mike Masnick so he can establish a defense fund for when he gets sued by Mike Rodgers for calling him a jerk that one time online. fight the power.

this is no different to what all the entertainment industries try to claim. they think everything is illegal unless it's them using it, until the time comes when they want to use it. basically, the entertainment industries want everything and the ability to use everything themselves, when they want to. it's allowing everyone/anyone else to have or to use it that they dont want. it's their usual scenario of dont do what we do, do what we tell you. selfish, greedy arse holes that need severely restricting as quickly as possible! it's not even as if they are responsible for the production of the majority of this stuff in the first place!!

Fair Use vs Plagiarism

Is she confusing Fair Use with plagiarism? Fair use allow one to quote or use other works in your own work without needing to get permission. Understandably, fair use is conceptually easy to understand but difficult to precisely define without context. Plagiarism is a stealing other's work/ideas and claiming it as your own. Plagiarism again is easy to understand but difficult to precisely define (e.g. the accidental inclusion of a few paragraphs uncited in a book has been cited as plagiarism rather than the more likely forgetting to cite the source).

Hmm, but Mike, your living supposedly depends on re-writing!

"ability to make a living depends on your ability to produce something" -- Really? First, what about those Born Rich, who are somehow simply entitled to skim from the labor of many working people? So that's trivially falsified.

Now, let's look at your own "product". Since your piece here is largely ad hominem attacking an apparently original writer, I've even less hesitation than usual to ask WHAT you produce that's of value? It's a mystery that in large part keeps me coming here. Every day you (and minions) re-write from others (not necessarily original themselves), on topics I've already read elsewhere. You're not a good or entertaining writer on fire for social justice, you're an Ivy League weenie elitist with clearly pro-corporate views, so shouldn't draw a large audience, YET you somehow get rated highly in Google searches. So for YOU to loftily criticize and sneer at a writer who travels and reads -- is actually your typical arrogance.

This will dispose of the rest of your rant: "does she contribute part of the revenue back to the authors of all of the works on the Russo-Japanese War?" -- SHE PROBABLY DOES BY BUYING THEIR BOOKS! That's all those authors ask!

Now, YOUR purpose, made clear over and over, is that "fair use" need not in ANY degree reward the actual creator, not even with attribution. Similarly, your repeated items on Pirate Mega-site Megaupload directly support a THIEF who never passed on a cent for any of the valuable works that little thieves took for free. You support TOTAL GRIFTERS, Pirate Mike.

HUGE DIFFERENCE between referencing prior works -- likely books paid for -- and the TOTAL THEFT that you variously disguise as "sharing" and "fair use".

Take a loopy tour of Techdirt.com! You always end up same place!http://techdirt.com/
If Mike supports copyright, why are the pirates here? They take him same as I do: PRO-PIRACY!

Re: Hmm, but Mike, your living supposedly depends on re-writing!

Disassembling smoeones argument and talking about why they are false or ridiculous isn't ad hom.

Ad hom are attacks on the person themselves in order to discredit an argument by discrediting the person.

I feel I need to state this due to your constant misuse of the word anytime Mike doesn't agree with someone or something.

Examples include...

Now, let's look at your own "product". Since your piece here is largely ad hominem attacking an apparently original writer, I've even less hesitation than usual to ask WHAT you produce that's of value? It's a mystery that in large part keeps me coming here. Every day you (and minions) re-write from others (not necessarily original themselves), on topics I've already read elsewhere. You're not a good or entertaining writer on fire for social justice, you're an Ivy League weenie elitist with clearly pro-corporate views, so shouldn't draw a large audience, YET you somehow get rated highly in Google searches. So for YOU to loftily criticize and sneer at a writer who travels and reads -- is actually your typical arrogance."

Example 2:

Now, YOUR purpose, made clear over and over, is that "fair use" need not in ANY degree reward the actual creator, not even with attribution. Similarly, your repeated items on Pirate Mega-site Megaupload directly support a THIEF who never passed on a cent for any of the valuable works that little thieves took for free. You support TOTAL GRIFTERS, Pirate Mike.

Also Techdirt attributes articles and attribution is considered the polite thing to do on the internet. Even pirates do it. However Techdirt makes note that while people may use its articles they DONT have to attribute it.

Ad hom is something generally only those highly uneducated in a subject will respond to. I suggest you stop attempting to use them.

Re: Re: Hmm, but Mike, your living supposedly depends on re-writing!

Google adjusts their search algorithm to place Techdirt higher in results when the search contains language that concerns Google's anti-copyright efforts.

Do an identical search in Bing, and Techdirt will place below larger, actual news sites."

As someone who does more internet marketing than you do drooling - which is to say ALOT - and who makes a living at it, I can with complete confidence call BS on your statements.

You obviously have NO - absolutely NO - clue how search engines work, the algorithms they use or the difference in the algorithms each one uses.

I can be #1 for a certain keyword on Google, but not even on the map for the same keyword on Bing. Why? Algorithm. Each one rates things differently... domain age, number of backlinks, type of backlinks, keyword diversity, social signals, and the list goes on and on.

Please... at least TRY to show SOME intelligence when spewing forth trash.

Re: Hmm, but Mike, your living supposedly depends on re-writing!

In Australia, referencing a work in another work requires Licensing, not just attribution, because there is no 'Fair Use'.

So by looking a copyright regime that has no fair use, your argument is dismantled. Merely buying the book isn't enough. Every copy of her book must distribute licensing fees to the authors she referenced. The only 2 ways you can just attribute are under public domain and fair use. And since the public domain isn't growing, fair use is the only way to see new source material.

Re: Re: Hmm, but Mike, your living supposedly depends on re-writing!

In Australia, referencing a work in another work doesn't always require Licensing, not just attribution, because there is 'Fair Dealing'.
So by looking a copyright regime that has no fair use, your argument isn't dismantled. Merely buying the book is enough. Not every copy of her book must distribute licensing fees to the authors she referenced. The only 2 ways you can just attribute are under public domain and fair dealing. And so even though the public domain isn't growing, fair dealing is another way to see new source material.
FTFY.

That article is definitely a testament to her ability to argue effectively.

She attempts to allay any hypocrisy with a half-hearted disclaimer in the beginning that mentions her use of past culture to build her own creative inspiration. This is something people do to make themselves sound intelligent, that they're seeing both sides of the coin, when in fact it's just an excuse for her to push forth an unpopular opinion.

Long story short: The lady doth protest too much, methinks.

Going by the article, it appears the author is conflating fair use with unlicensed use of the whole work. There's really not a point where she makes a direct, lucid argument against fair use in and of itself, but drifts off into how some teachers, that may reference her work in class, agree with the statutory licences regime as it stands. The gist of this argument to me sounds like she thinks she's legally entitled to a payment anytime professionals discuss her work at their work. Also there's this gem: "the ALRC would put the onus of proof of the crime on the victim, which cannot be a good principle of law in any of its aspects." It interests me in that if the onus isn't upon the rights holder to prove a claim that an infringement has occurred, based on fact that the infringement is real and that the rights holder actually owns the matter infringed, then legally who is it upon?

What is it with the maximalists and wanting to get paid that makes them think they don't do anything illegal but everyone else does? Hell Hollywood/producers/etc are some of the worst piraters and burn more DVDs/CDs for their portfolios than anyone. Now we can add authors to the list of hypocrites who just want to make a buck....

@ Copyright law has never been about "protecting against theft."

SHEESH. Certainly it is, BY DEFINITION.

"Copyright" is the right to control copies, derived from simple common law: "I made it, therefore I own it; YOU do NOT, but may license it." And it's pretty absolute because the works don't exist at all before created, so ANY use is theft. BUT that's toned down in practice for the public good as you (deceptively) state with some LIMITED usage that's deemed "fair", AND that it's for limited time, so that knowledge can spread.

But you're deceptive on "fair" because your purpose IS to destroy copyright. I can't conclude anything else when you repeatedly support Kim Dotcom of Megaupload, who makes available for free large numbers of expensive copyrighted content, from which draw he indirectly gets advertising money and directly money for faster downloads. That is NOT "fair use" or "sharing", and it's not a big leap to hold that someone who supports Mega-GRIFTER Dotcom is simply LYING about his views on the much smaller topic of "fair use".

Re: Re:

Re: @ Copyright law has never been about "protecting against theft."

"Copyright" is the right to control copies, derived from simple common law: "I made it, therefore I own it; YOU do NOT, but may license it."

No, copyright on published works does not exist at common law. Such was the decision of the House of Lords as early as 1774. In the United States, the Supreme Court agreed when a similar case reached them in 1834.

Also I don't think that there's ever been any notable society in history that ever had a law that people necessarily owned things merely because they made them. The real world is more complicated than that. Sadly, you seem to be very out of touch with reality.

Australian context

Writing is quite a different professional marketplace in Australia than in Europe or the US. I know this because I am married to a writer and it's the main reason we've left Australia. There is simply not the same level of support, nor the same amount of cash available for writers to make a living. Even without fair use, most authors need to hold down a second job to make ends meet. One of the few ways an author can make some money is by selling books to, and/or receiving rights from educational use through schools or universities. If I understand the context of this new "fair use" law, much of this revenue would dry up. Point is it's a completely different economy to the US and the conversation becomes a bit meaningless without considering the Australian context.

Re: Australian context

But that sounds more like the olden ways of doing business. Australia is already english-speaking, making using the internet an easy way to improve your ability to make a living.
Now, I know that internet in New Zealand and Australia is excruciatingly expensive comparatively, but it is still a tool you cannot ignore in the future.

Copyright has to cover every businessmodel!

Just ignoring the tool, going on a selfdefeating rant using wrong vocabulary like stealing about something (fair use? Unauthorized use? Piracy?) and claiming that the world will end, is not a good argument in a debate. The bad support for australian writers should make them that much more interested in new businessmodels.

Re: Australian context

So... just like writing anywhere else then? Writing is rather like a lot of other professions, only those at the very top are able to make a living purely off of it in almost all cases, just about everyone else has to get another job to help pay the bills.

Re: Australian context

1. um, you sayin' aussies don't read ? 8^)

2. don't have any knowledge of what the proposed 'fair use' laws are constituting over there, but 'fair use' doesn't mean schools/etc can use a book in toto, over here...
articles, etc may be copied whole for educational purposes, but books ?
*unless* it is already a digital version that is being used, it is almost always more expensive to make a *copy* of a book, than to buy the original book outright...

i am skeptical any significant percentage of schools/kids are using ebooks exclusively -excepting some rich school districts, and -evidently- los angeles starting next year- as the only method of class reading...

although -now that i think of it- *aside* from stupid DRM tricks, publishers gouging schools, etc, that would be a great idea: instead of thousands and thousands of physical copies of books, taking up warehouses, having to be physically moved, repaired, inventoried, etc, etc, etc...

issue an ereader for every kid (or, hell, i'm not even that adverse to making it a school equipment requirement: back in the day, you were required to buy calculators, etc which were MORE expensive than ereaders are these days), and ALL their books are in that one 'container', moving them around is a matter of a couple clicks, updating is easy (if the publishers don't rip you off), no warehouses, no forklifts, no ratty, doodled on copies, no tons of books to recycle every year, etc...

i'm not one for giving high tech crap to kids just for the gee whiz factor, but the more i think of this, the better an idea (if obvious) it seems to be...
i'm sure the publishers/authors would scream, so they would set the prices so high, it wouldn't be worth it...

damn, i sure remember carrying a half dozen heavy books back and forth for years, versus one itty bitty reader ?
now *that* sounds like a great use of the tech to me...

but i guess since some entitled cohort won't like it, it will be decades before that obvious use is practically allowed...

Re: Australian context

Several assumptions that hurt your argument in that passage: You only discuss Scholarly texts, rather than fiction. Schools are unlikely to be buying/licensing fiction in the quantity necessary to provide you with an income. However, the same logic applies in the US. Scholarly works are, most often, purchased by schools and students, rather then a random interested party at B&N.

Moreover, you assume Geo-locking of the publishing market (distribution is geo-locked, but the publishers themselves aren't). If your publisher (and you talk about support, so there is a publisher), is geo-locking your releases based on where you live, thats the publisher, not the Australian economy. This is the internet age. Find an american publisher to release your husbands work. Where you live shouldn't affect where you publish. And if your in the American market via your publisher, problems with the Austrailian Market shouldn't be affected by where you live.

So, perhaps you can provide us with some details as to how the Australian Market is so different from the American one in regards to scholarly works? Are you not in bookstores? Is there more/less competition? Access?

Why are people so much more willing to buy your work now that you are living in America? That seems like a problem with perception of the value of your husbands work then copyright.

Finally I would like to point out that you left Australia, a country with no fair use and no market for your work to move to (presumably) America or Europe, regions with Fair use (or fair dealing) and found markets for your work (also presumably given your reactions and the conclusions you wished us to draw). Its only a correlation, not causation, but there may be a link between fair use and a market which is open and provides solid income to its authors.

Re: Hmm, but Mike, your living supposedly depends on re-writing!

Out_of_the_Blue writes---
"This will dispose of the rest of your rant: "does she contribute part of the revenue back to the authors of all of the works on the Russo-Japanese War?" -- SHE PROBABLY DOES BY BUYING THEIR BOOKS! That's all those authors ask!"

Where in the original article does Linda Jaivin claim she buys books???? She mentions all the money she spends TRAVELING to china and japan for research. Sounds to me like tax deductible vacations, not buying books. Even if she does absolutely nothing but research while there, working in dark, dusty archives, exactly how does that support authors? Don't Assume.

Let me counter the second ridiculous assumption you make: I personally own >7000 books, >5000 dvds, and I don't know how many audiobooks. All legally PURCHASED over the course of my lifetime. Where do you come off saying that people who read Mike, and value his opinions, are all "grifters" who don't support creators? Who appointed you GOD?

So

we have this great hardware(foisted on us by MS) because MS cant program in PARALLEL processed environments.
Using SOFTWARE to control Multitasking, insted of HARDWARE multitasking..(because MS cant program on Multitask machines)
With Software Installed on our machines by the company that SOLD it to us...NOT SOLD directly from MS(dell/hp/others pre-installs) that Forces UPGRADES to new versions, and NOT letting us KEEP our old versions(it worked, why CHANGE?)
MS forces you to upgrade to newer versions by NOT letting you BUY the older/obsolete(?) versions... that WORKED and were pretty Solid environments near the END..
MS keeps helping APPLE (keeping them ALIVE) so they can show they Still have competition with other OS's...not like the OLD days when there were 4-5 hardware software systems to FIGHT with.
MS makes the programming Language and the OS/DirectX/and associates programs, and unless you wish to HACK/STEAL the programs it will cost you abit of money.
Ms wont ALLOW Linux to upgrade the conversion/upgrade of the DirectX emulator for linux...As linux used to be the MAIN system used to create GAMES then transcode them to DirectX for windows...

If you are going to criticize the author, then it would help immeasurably to first read up on copyright law in Australia, and in particular its "fair dealing" provisions. You would likely be surprised that there is much commonality between "fair dealing" in Australia and "fair use" in the United States. The primary difference from a legal point of view is that the current statute in Australia specifies what types of uses comprise "fair dealing", whereas the US statute is anything but a model of clarity since it does not specifically call out what is automatically encompassed under "fair use". In several respects the current "fair dealing" provisions of Australian law are broader than their US counterparts.

The current debate in Australia is a proposed change from a specific exemption statute (fair dealing) to a case-by-case statute (fair use) mimicking US law.

Re:

The current debate in Australia is a proposed change from a specific exemption statute (fair dealing) to a case-by-case statute (fair use) mimicking US law.

That is kind of a red herring, because Linda Jaivin does not even mention the current "fair dealing" laws. In fact, she explicitly singles out royalties she has received (from e.g. universities) which would seem to fall under the "fair dealing" provisions for research and study.

All she does is rail against how any use of her work without payment is "theft" and "no different than saying it would be OK to smash your way into a designer's atelier and grab whatever outfits you fancy."